UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
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:
PAUL D. CEGLIA,
:
:
Plaintiff,
:
:
v.
:
:
MARK ELLIOT ZUCKERBERG and
:
FACEBOOK, INC.,
:
:
Defendants.
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Civil Action No. 1:10-cv-00569-RJA
DECLARATION OF
ALEXANDER H. SOUTHWELL
I, ALEXANDER H. SOUTHWELL, hereby declare under penalty of perjury that the
following is true and correct:
1.
I am an attorney licensed to practice law in the State of New York and admitted to
practice before this Court. I am a partner in the New York office of the law firm of Gibson,
Dunn & Crutcher LLP (“Gibson Dunn”), counsel of record for Mark Elliot Zuckerberg and
Facebook, Inc. (“Facebook”) in the above-captioned matter. I make this Declaration in Support
of Defendants’ Fee Application in Connection with Their Seventh Motion to Compel (“the Fee
Application”) for payment of fees reasonably expended in connection with Defendants’ Seventh
Motion to Compel (Doc. No. 461) and Defendants’ Reply Memorandum of Law in Support of
Their Seventh Motion to Compel (Doc. No. 467) (“Compel Work”). I have personal knowledge
of the information set forth herein based upon my direct involvement in the matters at issue and
upon my review of the documents referenced below.
2.
Attached hereto as Exhibit A is a true and correct copy of the biography of Erik
Zimmerman, an associate in the Washington, D.C. office of Gibson Dunn. The biographies of
Thomas Dupree, Matthew Benjamin, and Amanda Aycock were attached as Exhibit A to the
Declaration of Alexander H. Southwell in Support of Defendants’ Fee Petition (Doc. No. 286-1)
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and have been excluded here to avoid redundancy. Messrs. Dupree, Benjamin, and Zimmerman
and Ms. Aycock all rendered services related to the Compel Work.
3.
The 2012 standard billing rates for the attorneys listed in paragraph 2 are as
follows: Thomas Dupree: $900.00, Matthew Benjamin: $720.00, Erik Zimmerman: $595.00,
and Amanda Aycock: $560.00. While Defendants submit these hourly rates are reasonable and
in line with the market, to avoid any disputes and mindful of the fact that this Court often
reduces fee requests to ensure reasonableness, Defendants are only requesting an award of 75%
of these standard hourly rates, as we have previously done and as has been previously accepted
by this Court. This reduced rate will be referred to as the “claimed rate.” The claimed rates for
each of the attorneys listed in paragraph 2 are as follows: Thomas Dupree: $675.00, Matthew
Benjamin: $540.00, Erik Zimmerman: $446.25, and Amanda Aycock: $420.00. In addition,
Defendants are also declining to seek reimbursement for several timekeepers, including partners
Orin Snyder and Alexander Southwell. The fees Defendants have actually paid to Gibson Dunn
for its legal services related to the Compel Work are more than those requested in this
Application.
4.
On April 19, 2012, this Court partially granted Defendants’ Fifth Motion to
Compel Ceglia to, among other obligations, produce relevant documents governed by this
Court’s Expedited Discovery Order (Doc. No. 83) that were improperly withheld as privileged.
Among the documents this Court ordered be produced was an email dated April 19, 2011 from
Ceglia’s counsel Paul Argentieri to Ceglia with the subject “Fwd: Follow-up” and containing
emails with attorneys at the law firms Lippes Mathias Wexler Friedman LLP, Kasowitz, Benson,
Torres & Friedman LLP, and DLA Piper LLP (“Item No. 379”).
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5.
After Ceglia produced Item No. 379, attorneys at Gibson Dunn, under my
supervision, reviewed the contents of Item No. 379 and discovered that a critical document was
missing from the production: the Kasowitz Letter, which was described as a letter from Kasowitz
Benson to their former co-counsel explaining that they were “withdrawing from the case based
on a determination that the purported contract at issue is a fraud.” Doc. No. 478 at 2.
6.
On May 24, 2012, Defendants filed their Sixth Motion to Compel the production
of the Kasowitz Letter (Doc. No. 382), which this Court granted in full on June 28, 2012 (Doc.
No. 457). The Court’s order required that Ceglia produce the Kasowitz Letter by July 9, 2012.
7.
On July 10, 2012, one day after the court-ordered deadline for the production of
the Kasowitz Letter, Ceglia’s counsel emailed me a copy of Item No. 379 and attachments, but
again omitted the Kasowitz Letter.
8.
Within the next day, Defendants’ counsel drafted, discussed, revised, and
finalized Defendants’ Seventh Motion to Compel production of the Kasowitz Letter (Doc. No.
461) and filed it on July 11, 2012.
9.
That same day, this Court issued a text order setting the briefing schedule on
Defendants’ Seventh Motion to Compel and requiring that Ceglia file the Kasowitz Letter with
his opposition to Defendants’ Seventh Motion to Compel on July 20, 2012.
10.
On July 20, 2012, Ceglia filed his opposition to Defendants’ Seventh Motion to
Compel—but failed to file the Kasowitz Letter as ordered by this Court (Doc. No. 466). Rather,
Ceglia submitted the Kasowitz Letter in camera.
11.
From July 20 to July 24, 2012, Defendants’ counsel reviewed, discussed, and
analyzed Ceglia’s opposition and drafted, discussed, revised, finalized, and filed Defendants’
reply in support of its Seventh Motion to Compel (Doc. No. 467).
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12.
On August 15, 2012, this Court granted Defendants’ Seventh Motion to Compel
the Kasowitz Letter, ordering that Ceglia produce, within three days of the order, the Kasowitz
Letter to Defendants. Doc. No. 478. In addition, the Court directed Defendants to provide,
within ten days, affidavits of costs and attorneys’ fees incurred as a result of attempts to obtain
the Kasowitz Letter. Id. Defendants’ counsel reviewed this order, discussed the effects of the
order, considered the content of the affidavits requested by the court, and reviewed and analyzed
bills for the applicable entries.
13.
Defendants’ counsel then drafted, discussed, finalized, and filed the instant fee
application and supporting declaration of Alexander H. Southwell, as well as conducted targeted
research.
14.
Attached hereto as Exhibit B is a true and correct copy of the narrative
descriptions of legal services rendered by Gibson Dunn attorneys, reflecting time expended by
them in connection with the Compel Work. On some days, attorneys rendered services that were
related to both the Compel Work as well as other work relating to the matter. To the extent that
a particular time entry pertained to both Compel Work and other work, the attached compilation
reflects only time entries pertaining to the Compel Work. These entries reflect conservative
allocations of time, ensuring that the total time claimed for Compel Work is less than the actual
time incurred on such work. This allocation is based on the time entries themselves and upon my
personal experience with the case.
15.
The total amount requested as attorneys’ fees for Gibson Dunn’s legal services
related to Compel Work is $10,970.63, for 21.75 hours of services rendered. This sum includes
all fees incurred while preparing Defendants’ Seventh Motion to Compel (Doc. No. 461),
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reviewing Ceglia’s opposition to Defendants’ Seventh Motion to Compel (Doc. No. 466), and
preparing Defendants’ Reply in Support of its Seventh Motion to Compel (Doc. No. 467).
16.
Below is a true and correct chart summarizing the time spent on legal services
covered by the Court’s sanction award that Defendants claim, as well as their claimed billing
rates.
Total
Hours
1.50
10.25
8.50
1.50
21.75
Attorney
Thomas H. Dupree
Matthew Benjamin
Erik Zimmerman
Amanda Aycock
TOTAL
17.
Claimed
Rate
$675.00
$540.00
$446.25
$420.00
Total Fees
$1,012.50
$5,535.00
$3,793.13
$630.00
$10,970.63
The total amount requested does not include fees incurred or billed outside of the
categories described herein, even where those fees relate to ensuring Ceglia’s compliance with
this Court’s orders compelling production of the Kasowitz Letter. Examples of such excluded
fees are substantial and include: preparation and defense of Defendants’ Sixth Motion to
Compel (Doc. Nos. 382, 434), subsequent correspondence with Ceglia’s counsel regarding
deficiencies in Ceglia’s production of Item No. 379, and attempts to meet-and-confer on the
issue of Ceglia’s deficient production. In addition, Defendants have excluded from their
Application a request for fees for the legal services of two partners, Orin Snyder and Alexander
Southwell, who contributed by providing strategic guidance and reviewing and revising the
briefs. We have also excluded, in an effort to be conservative, the invaluable legal services and
strategic advice provided by local counsel in responding to this Court’s text orders and assisting
with briefing, as well as logistical assistance and advice. In addition, we have excluded the
services of in-house counsel, who have spent time guiding strategy and assisting with briefing all
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matters relating to the Compel Work. Defendants reserve the right to seek all fees and expenses
incurred in connection with this fraudulent action.
18.
The total amount requested also does not include costs incurred with respect to
the Compel Work.
I declare under penalty of perjury that the foregoing is true and correct. Executed on this
27th day of August, 2012 at Long Beach Island, New Jersey.
/s/ Alexander H. Southwell
Alexander H. Southwell
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